The first man and the company man: the common good, transcendence, and mediating institutions

The first man and the company man: the common good, transcendence, and mediating institutions

Africa the temples have destroyed, and all that is left is this soft unbearable burden of the heart.

An enormous oblivion spread over them, and actually that was what this land
gave out, what fell from the sky with the night over the three men
returning to the village, their hearts made anxious by the approach of
night, filled with that dread that seizes all men in Africa when the sudden
evening descends on the sea, on the rough mountains and the high plateaus,
the same holy dread that has the same effect on the slopes of Delphi’s
mountain, where it makes temples and altars emerge. But on the land of
Africa the temples have been destroyed, and all that is left is this soft
unbearable burden of the heart.(1)

In this passage from Albert Camus’ unfinished novel, The First Man, the solitary loneliness and the absence of temples and altars are not only descriptions of the Africa of which he wrote, but of humanity. As with Camus’ other works, the self is alone. The dark absurdity of the evil-wielding, death-dealing universe gives one no hope for identity beyond that which the individual provides for herself. A commitment to reduce the suffering of the world is the rational choice of Camus’ “first man”

This isolation is neither fictional nor dated. It remains a factor in the late 1990s as well. Corporate downsizing has left the loyalty of employees unrequited. Once, an employee’s loyalty and commitment to a company provided a sense of identity and meaning–employees were “company men.”(2) Today “they’ve got to appreciate their value apart from the corporation.”(3) It is increasingly difficult for individuals to find a sense of long-term identity in corporate America. Indeed, in light of this emphasis on self-reliance, the common good seems merely a quaint, nostalgic phrase for today’s company man. Thus, the “company man” has become the “first man.”

The “first man” and today’s “company man” have little reason to seek the common good. Their notions of the good have been constructed from the perspective of self-interest: a good that is individually described and defined.(4) If we all are “first men,” what hope do we have in a politics concerned with communal welfare? A few years ago this question fostered a “republican revival.”(5) This revival is not “republican” in the contemporary sense of U.S. political parties, but rather a politics of citizenship focused upon the common good — a good beyond narrowly construed self-interest. It is a civic republicanism. Can a political theory of the common good transform the “first man” and today’s “company man”?(6)

Advancing a view in a vein consistent with the republican revival, the 1990s’ most noted spokesperson for communitarianism, Amitai Etzioni, argues that we can balance individual autonomy and our communal nature if we structure society to conform with a “New Golden Rule.”(7) In this new golden rule, individuals are to respect the moral order of a society that respects their autonomy.(8) In other words, a moral society should respect individual autonomy and an individual living in such a society should commit reciprocally to the social institutions supporting such a moral order.

This article discusses, in some depth, these notions of civic republicanism and communitarianism. I argue that each needs a much stronger emphasis on notions of transcendence and on mediating institutions. In short, I argue that a common good requires the altars and temples (generally speaking, religion) that Camus found absent. In a world dominated by business organizations, the common good also requires that the “company” be a mediating institution. In advocating a stronger notion of transcendence, I in no way am advocating an established church. Moreover, in arguing for the importance of mediating institutions, I am not arguing that religious institutions are the required mediating institution.

Because the terms I use easily can be misinterpreted, I will expand briefly on these two key concepts of “transcendence” and “mediating institutions.” I use “transcendence” in a way that Emile Durkheim used the notion of “force.”(9) In describing Australian aborigines, Durkheim argues that although there is no notion of “God” in the western sense, there is a notion of “force.” “Force” is an energy existing within all creatures, especially within members of a community, which continues on for generations.(10) This unifying force is the result of a power greater than the arithmetically aggregated forces of individuals within the community.(11) Two aspects of this term are important for my purposes.

First, Durkheim characterizes this “force” as a spiritual reality and a religious one. By that, he does not mean that there is only one such authentic religious manifestation. Rather, he means that some description of a transcendent reality binds the community by its awareness of this religious force. Hence, the reality is transcendent: it is beyond any particular person or collection of persons to change the mores of a society by some kind of individual choice. Societies can change, of course, but it is a change negotiated with the dead — that is, with tradition and history. And the dead do not easily compromise

The second important point about this notion of transcendence is that human beings are accountable to it. The transcendent reality to which one is accountable could be Yahweh,(14) but it could also be Shiva,(15) Allah,(16) or Nature.(17) But whatever the name, there is a moral component.(18) The “individual” fears, loves, and respects the sacred being, and also is bound by communal identity to the community and to the spiritual force manifested by and generated within the community.(19) As a result, duties toward others create kinship itself.(20)

The other term I use frequently throughout this article is “mediating institutions.” Mediating institutions are relatively small communities which socialize individuals.(21) They stand between the individual and the large megastructures of society, such as the nation-state or the multinational corporation.(22) Because of their small size, mediating institutions allow individuals to see and experience the consequences of their actions.(23) Accordingly, those consequences teach moral norms because they socialize individuals to see that their self-interest is connected with the welfare of others.(24) Traditional examples of mediating institutions are the family, religious institutions, voluntary associations, and neighborhoods.(25)

The mediating institutions neglected by scholars of ethics and political theory are the subunits of corporations, provided that the corporation is structured so that such subunits have the room to develop their own communal identity.

This article is divided into three sections. The first presents and analyzes the general theory of civic republicanism and Etzioni’s communitarianism. The second shows how the removal of religion from the public stage in the U.S. severed the dialectic necessary to support republicanism. The third section argues how and why mediating structures are vital to republican theory. More particularly, businesses provide an opportunity to create republican virtue. I conclude that while republican theorists correctly understand the preferability of a political theory in which liberalism and republicanism are largely synonymous, both liberalism and republicanism best socialize individuals to desire the common good when supported by religion and other mediating institutions.


The Claims of Civic Republicanism

The 1980s revival of republicanism as a political theory had both conservative and liberal components. The movement revitalized the conservative philosophy of judicial restraint and originalism.(26) Gordon Wood linked this originalist perspective to civic republicanism by arguing that the United States was founded as a republic, not as a liberal democracy.(27) On the other hand, the movement also was committed to the liberal notion of quests for the common good rather than reliance upon individual autonomy. The task of this civic republicanism was to find a way to teach the “first man” moral empathy and political citizenship.

The Substance of the Theory

The late-twentieth century republican revival in the U.S. has centered on developing a notion of citizenship based in the public good. The most prominent theme of the revival revolves around replacing self-interest with a notion of civic virtue. Interest group liberalism, the republicans argue, simply does not allow for a conversation about the public good.(28) Instead, individuals, particularly members of the judiciary and intellectual elites,(29) must replace the pursuit of self-interest with concern for the common good. This theme leads to the second theme of the republican revival. There must be a rethinking of our politics in order to create the room and incentives for consideration of the common good. The common good, the republicans argue, can be defined by a deliberative political structure in which discussion of the good itself becomes the defining feature of politics. The heart of the revival, then, is that there must be open dialogue between citizens (particularly intellectual elites) in defining the common good. It is a procedural commitment to rational discussion via “dialogical structures.”

Frank Michelman relies upon the notion of “jurisgenesis,” by which he means the disclosure of actual consensus through dialogue, to create this quest for the meaning of the common good.(30) Michelman views politics as the point where private-regarding individuals dialogue in terms of their own shared narratives to enable them to know how to live.(31) That process, he believes, will transform vice to virtue by presupposing a common set of beliefs that can be uncovered through dialogue. The result is the creation of self-government and a government of laws rather than individual leaders.(32) Michelman essentially argues that by requiring the “first man” to dialogue with other “first men” they will find that their interests are not as different as they originally thought. They will discover shared visions of the common good. Michelman does not identify the content of that good, but rather emphasizes the necessity of the dialogue by which “first men” discover and define their mutual good. “Jurisgenesis,” as its translation suggests, “creates law” through dialogue so that the law is formed for the common good.

Whereas Michelman advocates a notion of jurisgenesis, Cass Sunstein offers the notion of liberal republicanism.(33) Sunstein uses this term because he wishes to dissociate republicanism from classical and militaristic manifestations.(34) These forms of republicanism, he argues, led to oppression. Sunstein wants to preserve the protection of individual rights that liberal democratic politics defends, while creating some way to define a common good with direct exercise of that freedom.(35)

Sunstein defines four republican commitments. First, there is a commitment to deliberative government.(36) By this, Sunstein means that politics should not be about the imposition of beliefs by self-interested groups.(37) Instead, political actors are “to achieve a measure of critical distance from prevailing desires and practices, subjecting their desires and practices to scrutiny and review.”(38) The goal, then, is for citizens to deliberate in order to build a consensus as to what constitutes the common good.(39) Second, there must be a commitment to political equality.(40) This requires that all people should have equal opportunity to participate in the political process.(41) When power and wealth become unbalanced, equality is gravely endangered.(42) Third, there must be a regulative notion of universality or agreement.(43) By this, Sunstein means that the deliberative process will identify a common good.(44) Under interest group pluralism, he argues, no substantive notion of the common good can be articulated

Sunstein argues that liberalism can be opposed to republicanism only by making liberalism into a caricature of its tradition.(49) He correctly argues that possessive individualism and modern neo-Lockeanism were not central at the founding of the country.(50) The founding liberals placed great emphasis on deliberation and on the capacity of political dialogue to improve the outcomes and to undermine unjustified disparities of power.(51) While collectivist republicanism and atomistic individualism are at odds, more moderate forms of liberalism deny self-interest as a sufficient basis for political outcomes because rights are not pre-political. They are the product of a “well-functioning deliberative process.”(52) Thus, liberalism and republicanism can be mutually supportive.

Is there a more concrete notion of the common good than that of process? Is political dialogue among elites sufficient to transform narrow self-interest? Is there a role for moral education so that persons view dialogue as constructive rather than competitive? If so, what does that moral education look like? What is its source? And, what kinds of institutions are necessary for its dissemination? These questions suggest missing elements in the republican revival.

Missing Elements in Civic Republicanism

Sunstein and Michelman advance a process by which persons may be able to grow beyond narrow self-interest. However, their theories contain several shortcomings. First, they neglect to adequately describe human nature, which leads to an impoverished substantive content of the common good. Second, they dramatically shortchange religion and its potential to foster the kind of concern for the common good they wish to see. Third, they fail to account for the possibility of oppression, a problem directly related to their resistance to the notion of transcendence. Fourth, they underestimate the potential for mediating institutions to play a role in this process.

Human Nature and Substantive Content. Jonathan Macey has noted that the republican theorists are fundamentally optimistic about human nature.(53) Rather than assuming that human beings are essentially self-interested, the republican theorists assume that human beings can conduct deliberative debate beyond their narrow self-interest.(54) According to Macey, that assumption, which is neither justified nor developed by Michelman and Sunstein, makes a significant difference in one’s view of the potential efficacy of republicanism as a practical political system.(55) Macey’s skepticism about republican optimism, however, begs the question of whether self-interested persons can ever form a common good. Can the “first man” really find a common good with other “first men”? Both Sunstein and Macey position self-interest in opposition to the common good. Such an opposition makes any transformation away from self-interest deeply problematic.

Richard Epstein recognizes this problem. He has argued that a republican collectivist vision requires substantive criteria of the good.(56) For Epstein, procedural dialoguing structures are not sufficient for such a transformation. Epstein’s position, however, itself is overstated. A commitment to dialogue presupposes an end of humanity — peacefulness, rationality, goodwill, and solidarity — that can be a teleological goal itself.(57) Thus procedure can be substantive because it recognizes the inherent status of other persons and provides criteria for the dialogue itself.(58) If, as Durkheim would argue, “individuals” are not autonomous, discrete beings, but a manifestation of a single, unitary, and transcendent force, then dialogue is not procedural, but rather a constitutive aspect of self-identity. The problem is that neither Sunstein nor Michelman really contends for a substantive good that justifies their procedural recommendations. This failure does leave their common good vulnerable to Epstein’s critique.

However, a substantive, albeit undeveloped, good underlies Macey and Epstein’s commitment, a good that ought to be identified and ought to challenge their assumptions. The commitments to communication, dialogue, and mutual respect reflect a human nature much different from that of pure self-interest. It is not procedure alone that transforms self-interest, but procedure together with nourished moral empathy and sympathy resting upon the notion that there is a transcendent, interconnected reality that makes moral duties concomitant with self-identity. To be sure, a procedural notion of justice could be simply a good designed for individualistic pursuit of self-interest. In fact, this is exactly what procedural justice becomes without transcendence and mediating institutions. If Epstein is insisting that a republican common good requires a Quebec-like substance,(59) republicanism is surely lifeless in the United States. That is, a common good may be defined in terms of particular uses of language, culture, and religion as it is in Quebec, but those characteristics are not likely to be found in the United States.

While Epstein may be wrong to insist upon the necessity of a structured, substantive common good, he is right that a stronger articulation of the republicans’ procedural qua substantive common good is necessary. Unless one directly grapples with the substantive issues of human nature and self-interest, there is no rationale for why procedural dialogue will guide self-interest toward the common good. Unless one knows the nature of what is being transformed, how can one know if it has been transformed or whether, in the attempt at transformation, violence will occur, rather than deliberation? If human beings are deeply self-interested and isolated, and if dialogue does not resolve disputes, the necessary social structures required for civilized life may be implemented through bloodshed and/or coercion. It is only through empathy, sympathy, solidarity, and dignity that one can rely upon dialogue as a means to the common good. Unfortunately, Sunstein and Michelman do not ground their procedure at this level, perhaps to avoid the religious and/or metaphysical arguments it necessarily triggers.

The Role of Religion in Republicanism. Religion is a “loser” in Michelman and Sunstein’s republicanism, both as thought of in terms of traditional institutional affiliations and as any other transcendant good that stands beyond individual and social construction.(60) That loss undermines their theory. Consensus and dialogue are no guarantors of enlightened politics. Without

Why is such dialogue problematic for Michelman and Sunstein? In general, they wish to avoid the polemic dialogue that religious debate can foster.(64) Religion, as a powerful social force, can foster intolerance, hatred, and oppression as much as it can foster goodwill and generosity.(65) Such attributes provide good reason to fear any introduction of religious belief into political dialogue. While Sunstein and Michelman essentially propose a common good that floats above any particular comprehensive moral view,(66) they ultimately cannot avoid the need for comprehensive moral views, including religious ones. Although the republican theorists avoid making the substantive argument for it, goods such as tolerance and solidarity are normative ends because the republicans both believe human beings are “good” enough to discuss differences peaceably, and value the respect inherent in such a dialogical structure.

I fully agree that these are good ends, but Epstein rightly raises the question about the need for clarity in articulating the substance of the common good. That substance acts as the core of a prophetic critique of actions that drift from the common good. They act as a depth-hermeneutic to which procedural dialogue must be subject. More specifically, they are a transcendent reality to which citizens are accountable. In short, Sunstein and Michelman are exactly right in what they propose, but by failing to acknowledge the substantive good they pursue, they also eliminate the structures that can sustain that good.

Two practical reasons illustrate why the absence of religion is a problem for republican theory. The first relates to citizen education. Democratic moral self-governance requires significant confidence in the ability of citizens throughout the society to properly deliberate.(67) Thus, if republicanism is to be a full-blown citizen-based theory, it must identify the ways in which citizens understand that their “self” includes concern for others. This educational process must link itself with institutions that teach those lessons. Certainly educational institutions themselves can play a significant role in this task. Because the task involves moral predispositions, however, those institutions involved in moral formation — such as religious institutions — are vital to the republican task.

Second, if the republican process is to allow individuals to share their narratives and if the participation in the dialogue is to have any kind of popular involvement, then one must be prepared for the fact that narratives often will have some element of religious belief.(68) In other words, religious belief is meaningful to many citizens, and, to engage their participation, one might want them to be free to rely on what is meaningful to them.

The Risks of Oppression When There is No Transcendence. Derrick Bell adds another related problem: to avoid oppression, one must have some transcendent rules.(69) Bell worries that, unless principles are guaranteed, there is no reason to be confident that dialogue will transform prejudice.(70) The purely democratic deliberation Michelman and Sunstein propose, according to Bell, may not be sufficient to protect minorities from oppression.(71) Such a procedural notion, disconnected from its underlying teleology, does not avoid practices such as slavery because no moral sense — no prophetic critique or depth-hermeneutic or transcendence– stands as a limit to popular sovereignty. This, of course, is precisely what Abraham Lincoln saw in slavery: oppression may not be prevented by popular sovereignty.(72) Transcendent rules, however, require exactly the kind of moral (including religious) dialogue about the good that Sunstein and Michelman marginalize.

While religion is often viewed as being intolerant and itself oppressive (and viewed this way for good reasons), dialogue requires religion if republicanism is to sustain the kinds of virtues Sunstein and Michelman rightly admire. This is so because religion deals with the topic of transcendence. Without such engagement, deference to contractual agreements and consensus gives rise to the Douglas position permitting slavery.

This is not to say that religion has no part of perpetuating oppression. It both can support and can undermine oppression.(73) The difficulty is that any social construction, even that of language, privileges those who articulate the customs of a community at the expense of those who are marginalized.(74) Thus, even the construction of moral principles through dialogue is one that entails oppression insofar as the participants to the dialogue are limited. A community dialogue that does not include all members of the community, even one motivated and practiced in goodwill, will lurch toward marginalization.(75) This problem becomes even more pronounced when one recognizes that any community relies for construction of moral principles not only on current members of the community, but on those who have preceded the living.(76) The practical counterweight to this marginalization and to the impossibility of involving everyone in dialogue is that of virtues tied to transcendence.(77) In a sense, transcendence becomes a guarantor against marginalization.

Apart from the complex relationship between oppression and virtue generally, sociologist Robert Jackall’s analysis of corporate life directly supports the concern that social construction of duties can undermine virtue itself. In Jackall’s study, he argued that the “moral mazes” managers must experience are the result of ethical principles that are entirely constructed within the confines of the organization with no relationship to an external standard that clarifies what is virtuous behavior.(78) When virtue is merely socially constructed, as Jackall found in his study, moral behavior in corporate life becomes merely bureaucratic efficiency and fealty to hierarchy.(79)

The Role of Mediating Institutions. The civic republican theory of Sunstein and Michelman fails to adequately consider mediating institutions. The absence of a significant role for mediating institutions is related to, but also is distinct from, the exclusion of religion. To be sure, Sunstein does argue that mediating institutions serve “as areas for the cultivation and expression of republican virtues.”(80) Sunstein also argues, however, that mediating institutions can themselves be oppressive.(81) As places where individuals learn responsibilities to others, however, mediating institutions become critically important institutions where one’s view of oneself is connected to a common good. Whether, as Sunstein fears, they are oppressive, whether they enhance a distance from public life,(82) or whether they foster individual responsibility, depends upon the existence of the altars and temples (and not only religious ones) that the “first man” can no longer find. It also depends upon the size of the community.

As Kathryn Abrams notes, the founders relied upon mediating institutions (including religious institutions as well as voluntary organizations and local governments) because they knew that a citizen’s relation to the polity was shaped by popular political institutions.(83) To foster republicanism, she argues, one needs to foster mediating institutions because they are highly visible, provide easy opportunity for involvement, initiate participants into the self-governing process, provide a way for individuals to grasp common norms, and reduce coercion.(84) In short, the benefits of mediating institutions are the same benefits Sunstein and Michelman champion in terms of dialogue. Both civic republicanism and mediating institutions foster notions of citizenship, goodwill, tolerance, and solidarity. As will be noted in the following discussion of Amitai Etzioni, however, anthropological evidence suggests that the size of an organization determines whether an empathy-supporting dialogue can take place. One may not be able to have an empathy-producing dialogue in large organizations, at least not on a regular basis.

No one form of mediating institution is required to assure the success of republicanism. As Paul Brest notes, to encourage republicanism, one must reduce the fascination with judicial exclusivity and focus on private spheres.(85) They need not be, indeed are best not, governmental associations, but include families, churches, and corporations. Brest cites Hannah Pitkin who explains the role of mediating institutions.

Actual participation in political action, deliberation, and conflict makes
us aware of our remote and indirect connections with others, the long-range
and large-scale significance of what we want and are doing. Drawn into
public life by personal need, fear, ambition or interest, we are therefore
forced to acknowledge our power and standards. We are forced to find or
create a common language of purposes and aspirations, not merely to clothe
our private outlook in public disguise, but to become aware ourselves of
its public meaning. We are forced, as Joseph Tussman has put it, to
transform “I want” into “I am entitled to,” a claim that becomes negotiable
by public standards themselves, about our stake into the existence of
standards, of justice, of our community, even of our opponents and enemies
in the community

The purpose of mediating institutions, according to Brest, is to create space for citizens and non-judicial institutions to participate in common discourses and decision-making.(87) That is particularly true, Brest argues, in the business sector. In fact, Brest argues that the key to republican participation is to develop a notion of participation in the workplace.(88) Regardless of the particular form of the mediating institution, however, the important task is the creation of non-governmental places in which one learns that one’s self is inevitably connected to, and dependent upon, associations with others. Such a definition of the self, however, goes directly to the heart of what is missing from the republican theory.

Michelman and Sunstein assume the self is properly constituted as an entity that should concern itself with others. Even if one agrees with their assessment, how does one change an attitude of narrow self-interest? This transformation of self-interest cannot simply be done through deliberative politics. Civic virtue only becomes desirable if one understands the personal benefit of promoting such virtue. That is a moral task, not a political one. It explains why Bell is right to worry about oppression. Without a transcendent sense of moral belief in the wrongness of discrimination, deliberative politics is not sufficient to extend the identification of the self to solidarity with the poor, oppressed, or simply different.(89) It requires a moral transformation of the self that only can be done in conjunction with interdependence with others learned through mediating institutions that allow that self to be concretely broadened.

Thus, a recovery of republicanism requires more than dialogue. It also requires a moral depth-hermeneutic that demonstrates why self-interest is best conceived in interdependence with others and a set of structures through which authentic, popular dialogue can occur effectively. Sketching a notion of this normative common good is the focus of the next section. But, it also is important to describe communitarianism, a sibling of republicanism, and analyze it in terms that bring more life to the discussion.

Etzioni’s Communitarianism

Introduction to Etzioni: Communitarian Choirs

“Preaching to the choir” is a popular characterization of a message geared to those who already agree with the speaker. In his book, The New Golden Rule, Amitai Etzioni drops a glimpse of the choral analogy when he writes that, based on his experience, bowling associations, chess clubs, and choirs may provide some degree of social bonding, but not much of a moral culture.(90) He parenthetically admits that his experience with choirs is much more limited than his experience with bowling and chess. As one who has sung close to fifteen hundred concerts or performances, I would like to suggest that choirs actually are a good metaphor for Etzioni’s task.

Members of choirs are, to be sure, often devoted and devout and, therefore, already may agree with what the preacher says. Even those who are compensated to sing in choirs usually are deeply devoted to the art and to the transcendent purpose for which they sing. Beyond that, however, choirs contain very different individuals.

Individual choirs, moreover, differ depending upon their membership. Many choirs consist of pious, serious singers. Others are filled with irreverent and playful jokesters who rarely leave a cleric or ritual unskewered. Many singers are the epitome of harmony. Others are not. Dramatic sopranos rarely like to flatten their vibrato to blend with others singing a plainsong chant. Many think no bass has ever sung, by choice, a low note softly. In short, behind the veneer of devoted participants to a common cause are a wide variety of individualists, hopeful soloists, and team players, the combination of which makes each group different. Once these idiosyncracies are accommodated, however, the beauty comes in a unified sound of different voices and timbres that is far more than the arithmetic addition of voices.

Because individual choirs are different, they also are subject to a variety of successful leadership styles. They can be “inspired” by a conductor’s intimidation, joy, weirdness, legend, and sweetness. The elements uniting conductors whom I have seen practicing each one of these styles are commitment to a transcendent purpose for which the music is placed in service, to the art itself, and to the members’ “voice” — not only in the sense of the musical voice, but also in the governance sense of having some participation in the substantive development of the musical “product.” (“I don’t think our section has measure forty right

If one wants a choir to fail, the strategy is not difficult to devise. Still the “voices” of the members, ignore their interests, de-emphasize the contribution they make to the greater community, and question their motives. Take away their ability to participate in the direction of the group. Do these things, and voluntariness is replaced by weary duty, participation loses its relationship to a transcendent purpose, and the resulting loss of joy will solidify hierarchies as the attention of those remaining in the choir turns to status. Finally, people will stop singing. If this is not enough to discourage new recruits, then a sure way to do so is to make sure prospective members think there is nothing distinctive about the choir (particularly if these prospects have other places to sing). Size is also a factor. Big choirs tend to sound like big choirs (which can actually be quite exciting). Small choirs tend to sound like the individual timbres of particular voices

In short, choirs are pretty much like most other organizations. We want the organization to meet our interests and satisfy our need to belong to something bigger than our individual selves. Our enthusiasm for giving up our individualistic pursuits is fueled by the commitment to this larger result that is grander than the sum of the individual voices (i.e., transcendent), and because individual singers see the connection between their self-interest and the good of this larger community. And, the common good of the choir is particularly close to our individual preferences when the size of the group is small enough to foster empowerment. So how does this relate to politics?

Etzioni articulates a vision of communitarianism in which one should “respect and uphold society’s moral order as you would have society respect and uphold your autonomy.”(91) Interestingly, he chooses not to preach to those who are already committed to sing in a communitarian choir. How does he approach this difficult task of forming an ensemble? He finds a common enemy, religious conservatives. In making religious conservatives the common enemy against which he wants to rally others around his communitarianism, he essentially asks religious communitarians of any stripe to keep quiet. His tactics lead to some strange consequences. For instance, he frequently refers to Richard John Neuhaus, a Catholic priest usually grouped with neoconservative thinkers. However, Etzioni characterizes neoconservatives as interested in autonomy rather than communitarianism. On the other hand, he identifies Neuhaus as an endorser of an Etzioni-endorsed communitarianism,(92) and also as representative of a backward-looking Catholic hierarchy where autonomy is granted as long as one thinks like the Church.(93)

In diminishing the religious voice, he thus gets trapped in these paradoxical caricatures of those who, like him, also try to bridge the autonomy-communitarian gap. Rather than getting other communitarians to join in his choir, he seems more interested in arguing for a communitarianism which stills the voice of those who might have a part to sing in his choir. There seems to be no part for them to sing in his choir

Substance of Etzioni’s Communitarianism

Mike Keeley argues that the lurking problem for communitarians is differences among individuals.(94) Because individuals have different notions of the good, one cannot articulate a singular common good. One must instead emphasize individual goods. Etzioni, however, hopes to enlist support for communitarianism as a national public ethic by demonstrating that we would freely consent to it. His strategy is to offer a social contract based on a balance of community and autonomy.(95)

Etzioni defines community as:

[A] web of affect-laden relationships among a group of individuals,
relations that often crisscross and reinforce one another (rather than
merely one-on-one or chainlike individual relationships), and second, a
measure of commitment to a set of shared values, norms, and meanings, and a
shared history and identity–in short, to a particular culture.(96)

A community, then, is one which forms individual character by the crisscrossing, reinforcing relationships which any individual experiences. Etzioni recognizes, however, that as inevitable as a community is, only certain kinds of communities foster individual autonomy. Communities, Etzioni concludes, can be oppressive and hierarchical.(97) Because “the quest for community often involves domination for some and subordination for others,”(98) Etzioni concedes that there is reason to fear that communitarians “want us to live in Salem.”(99) He attributes such fears, however, to an image of premodern communities in which rigid boundaries separated old villages which were “total communities.”(100) Today, however, the availability of attachments to multiple communities prevents any one community from overwhelming an individual.(101) Moreover, one avoids many of the authoritarian features of a community if one rejects religious conservatism.(102)

To avoid these rigid kinds of community while simultaneously contending for some kind of communitarianism, Etzioni argues for a community that balances autonomy and community through the practice of a New Golden Rule. A community such as this, for Etzioni, is one that is entitled to respect from individuals because such a moral order respects individual autonomy. Thus, by practicing a “New Golden Rule” in which one should “respect and uphold society’s moral order as you would have society respect and uphold your autonomy,”(103) one creates a balance whereby both community and autonomy are enhanced.

For the United States, which meets his definition of a community,(104) this requires a commitment to constitutional democracy (as a substantive rather than procedural value), “layered loyalties” to the many communities that comprise our polity, a sense of voluntariness to membership in the community, tolerance for the beliefs of others, a reduction of the use of “identity politics,” megalogues and smaller communal dialogues, and reconciliation with those estranged from us.(105)

One cannot dismiss Etzioni’s argument quickly. Unlike the civic republicans, Etzioni is concerned with constructing a community whose common good is developed by all individuals in the society, not just the elites. He also takes seriously the hierarchical problems that plague community-based normative structures. Thus, he insists upon a community that values individual autonomy. Perhaps his best insight, though, is that in a diverse society where individuals have many attachments, the risk of oppressive community structures is much less than was the case in past human history. The multiplicity of communities becomes a protection against communitarian excesses.

Missing Elements

As with civic republicanism, however, Etzioni’s communitarianism lacks a number of elements, two of which are worth emphasizing.

Appropriate Sizing of Communities. Contemporary psychology and anthropology suggest that human beings have a limited ability to identify with large numbers of others. Psychologist Robin Dunbar, for instance, has written that the size of the human brain’s neocortex suggests that the optimal number of individuals with whom one can have a genuine relationship is approximately one hundred-fifty.(106) Similarly, Robert Wright, summarizing many of the recent findings in evolutionary psychology, argues that our physical structure indicates that we are not cognitively different from our hunter-gatherer ancestors, who lived in the size of communities Dunbar documents.(107) Further, Wright suggests that the disjunction between this feature and our contemporary urban and suburban environment may account for much of today’s social pathologies.(108) Others have made similar arguments about the optimality of small groups in nurturing moral identity.(109)

Such findings support the arguments of scholars such as Peter Berger and Richard John Neuhaus, who argue that our moral identities are not formed primarily through interaction with a megastructure such as the nation-state, but through smaller mediating structures such as the family, neighborhood, local church, and voluntary associations,(110) Etzioni does not reject these structures. Indeed, he notes that the moral infrastructure of society depends upon the four formulations of families, schools, communities, and the “community-of-communities.”(111) However, by focusing his theory on the “community-of-communities”–Etzioni’s term for the nation-state itself–Etzioni fails to give a rationale for how individuals can cognitively inculcate the “moral voice” necessary for virtuous democracy.(112) It is not likely that we will learn to sing well in a large symphony chorus if we have not first been trained to sing well in smaller choirs.

The Necessary Element of Transcendence in Golden Rules. Etzioni uses the Golden Rule as a criterion for his balanced, virtuous democracy. His Golden Rule, he argues, is an improvement over the “old” Golden Rule, because the latter is concerned with “merely interpersonal” relationships.(113) His reading of the old Golden Rule obscures its historically social nature and, by doing so, also obscures its transcendent element.

Some examples from the old Golden Rule may help illustrate its social character. The Confucian formulation of the Golden Rule is set within a context of defined social relationships, such as father-son and husband-wife. These social relationships are not simply interpersonal, however, but are sanctioned by an entire cosmology of earthly existence. Similarly, when Plato places Socrates in the dilemma of whether to obey an unjust law in the Crito, he uses Golden Rule thinking to uphold society’s rules, not to simply resolve an interpersonal conflict. Finally, when Rabbi Hillel offered his summary of the Hebraic law as practicing the Golden Rule, he went beyond interpersonal relationships to identify an entire legal and social order that was dependent upon and which also stood behind this ethical norm.(114)

Behind these formulations of the Golden Rule are connections with transcendent ideals. Hebraic law was not simply created out of a negotiated, interpersonal agreement, but within a social context embedded with limitations on what society could enact. Indeed, Golden Rule thinking was connected to the rationale for concern for the less fortunate as exemplified by the condemnation of King David for having taken Bathsheba by sending her husband to die in battle.(115) The “Old Golden Rule,” thus, was much more than interpersonal.

This introduction of transcendence brings us directly back to the role of religion raised in the critique of republican theory. It is important to remember that while religion’s recognition of transcendence is important, a religion that thinks it has the entirety of life’s answers may not be recognizing transcendence. Transcendence extends beyond our selves, including our ability to fully describe it. Human beings may be able to sketch the parameters of it, but if human beings were able to fully articulate it, it would no longer be transcendent

Civic republicanism and Etzioni’s communitarianism are worthy efforts to revive a notion of citizenship devoted to the common good. In their understandable desire to avoid divisiveness and to promote an approach with national consequences, however, they brush over exactly the supports necessary for the citizenship they (and I) desire. Mediating institutions, which socialize individuals to see a transcendent reality of their communal identity, must be a part of a contemporary republicanism/ communitarianism. Such structures must reach to all citizens, not just the elite, so these citizens can develop their own communal voice and identity. Both because our society is so much more diverse than it was in past history when a community was a “total community” and because modern technology prevents any one total community, we can advocate for a community-based approach with less fear of its past problems provided our communities are more geared toward those which empower voices in large megastructures where typically only shouting is heard, not music. Exactly why this voice has been lost and mediating institutions marginalized is the topic of the remainder of this article.


Introduction: On What Is And Is Not To Be Argued

Because this section is so fraught with potential for misunderstanding, it is important for me to frame its argument in two ways. First, as I will illustrate, notions of citizenship, the common good, and moral values were undermined by the privatization of Protestant Christianity in the United States. However, I do not wish to argue that there is no alternative to the same Protestant Christianity to revitalize contemporary politics. The history I present is meant to be an illustration of a deeper point that citizenship, the common good, and moral values are dependent upon recognition of transcendence and mediating institutions. This section does not argue that the Judeo-Christian tradition is the only tradition which could provide a meaning of the common good and its associated moral categories.

Second, to explain this a bit further, let me analogize this point to Dostoevksy’s The Brothers Karamazov.(117) In The Brothers Karamazov, Dostoevksy proposes that if there is no God, then nothing can be immoral. Crime becomes not only lawful, but inevitable.(118) His point is that unless there is a final transcendent reality, human beings are free to negotiate the terms of morality, and that negotiation inevitably can justify anything, even crime. Dostoevksy, however, did not therefore jump into the arms of the Church. In the book’s most famous part, “The Legend of the Grand Inquisitor,” Dostoevksy (through the character Ivan) relates a story of Christ (who for Dostoevsky represents freedom to choose appropriate actions) coming back to Inquisitorial Seville.(119) Christ is welcomed by the people, but the local priest is angered.(120) He visits Christ in jail and essentially tells him to leave or be killed.(121) As one commentator has written, the reason for wanting to banish Christ is because of the priest’s love for his people. The priest knows that people want to be told what to do.(122) In the end, people readily give away their freedom. Thus, Christ leaves, bowing to the old priest’s knowledge.(123) For Dostoevksy though, this is a denial of the gift of freedom, a gift which the Inquisitor says needed correcting.(124)

The significance of this account is twofold. First, without a transcendent reality to which actions are accountable, ultimately anything can be rationalized. Second, no one community is the transcendence. Accordingly, in this section, I wish to sketch a history of the relationship of the privatization of religion and a decline of the common good to demonstrate this basic point. But, I do not wish to therefore be understood in this article to be proffering an argument for the ultimate community.

A History of Privatization and Decline of the Common Good

How religion became privatized in the United States is an important subject for republicanism and communitarianism. Admittedly, this task is far beyond the scope of a single book, let alone a section of an article. Yet, it is important to have a sense of it in order to offer a constructive assessment of republicanism and communitarianism. The reason for its importance is because the ways the republicans and communitarians seek to find the common good make the commitment to the common good hard to sustain. Once religion becomes a matter of choice rather than communally formed identity, all choice becomes rational, including that which denies a responsibility for the common good. It is important, then, to see how religion gave away much of its public character.

This section argues that the communitarian/republican ideal — and the reasons for the ideal — is very much consistent with our founding.(125) Colonial notions of government show how central religious vision was to this country’s establishment and how religious institutions largely removed themselves from public morality.

Religion and the Republican Revolution

The republicanism of colonial America contained a clear theological underpinning.(126) For instance, the Puritans sought religious freedom to create a truly holy community — a city on a hill.(127)

The American Revolution also was profoundly influenced by religion. Thomas Jefferson made, in religious terms, his claim for legitimate government. In 1781, Jefferson wrote John Adams asking if “the liberties of the nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?”(128) Benjamin Franklin stressed that most men and women need to have the incentives of religion in order to keep them from vice.(129) George Washington, in his presidential farewell address, said that religion and morality were absolutely vital to American political success.(130) Alexander Hamilton, from a utilitarian standpoint, wanted a firmly religious country because religious people were generally stable and such stability would attract commercial interests to the United States.(131) James Madison wanted to have military chaplains exhorting and comforting soldiers, although he did not want the government to endorse a particular denomination by paying one of its ministers.(132) John Adams wrote to his wife that religion and morality were the foundations of freedom and that a patriot had to be a religious man.(133)

The founders realized that the values they endorsed, such as the values of life, liberty and the pursuit of happiness, were the same values that religion endorsed(134) As Zephaniah Swift, a Chief Justice of the Connecticut Supreme Court recognized, the central maxim of the law was to do unto others as you would have them do unto you.(135) The point is not whether this same maxim could be embraced “secularly” rather than “religiously,” but rather that it was embraced religiously. A strong religious people, it was thought, would protect the American republic against those not respectful of the freedom arising from the dignity of human life.(136)

Thus, the Revolution and the Constitution were based on a religiously informed common good, albeit one with less ecclesiastical specificity than would occur in a country with an established church. The founders recognized the necessity of the common good. But, it was a public religion rather than a religion emanating from an established church.(137) A “publick religion” (Benjamin Franklin’s term) shares a value system beyond particular denominations:

[A] kind of nonestablished religious culture unencumbered by sectarianism
and superstition and dedicated at the same time to freedom and the common
weal. Public religion, therefore, was the expression of “enlightened”
religious values which are widely shared among citizens of the republic.
Its theological and doctrinal content was thin: belief in God, the need to
do good, immortality, and rewards and punishments.(138)

According to legal historian Stephen Presser, this religiously centered understanding of the common good also was reflected in the judiciary in a way that foretold how the marginalization of religion began.(139) Presser has argued that, after Jefferson’s ascendancy to the presidency, the spirited debates between the Federalists and the Democrats were anchored in a religious dispute. One of the most ardent Federalist judges, Samuel Chase, viewed the democratic principles coming from the atheistic and rationalistic French Revolution to be a dangerous corruption of virtue required for the success of American government.(140) Individual liberty was to flourish within the constraints of a common good that allowed freedom to elect leaders.(141) According to Presser, once leaders were elected, the English notion of government insisted that leaders thereafter were not to be criticized.(142)

John Marshall’s interpretation of the Constitution strongly in favor of individual liberties created an “original misunderstanding” of the Constitution — according to Presser –which rejected the divinely-directed requirements of a citizen’s life in favor of a Constitution understood only as a protector of individual freedom.(143) This original misunderstanding effectively divorced republicanism from liberalism because it replaced support for the common good with protection of individual liberty. Once divorced from a religiously informed common good, the claims of the common good were adjudicated according to political claims of equality and liberty. The altars and temples having been removed, however, liberty and equality fostered self-interest, not a citizenship focused on the common good. Given an equal playing field (equality), it was up to each person to make the most of himself or herself. Such “first men” need not seek the common good.

It would be a mistake to claim, as some legal historians suggest, that the religious influence in America ended at the time of the framing of the Constitution.(144) It also would be a mistake, however, to fail to note that the vision of the good had changed. Suzanna Sherry points out that the difference between the Declaration of Independence and the Constitution is a difference in the anthropological assessment of human nature.(145) The Declaration contained a native optimism about human nature. By the time of the Constitution, the depravity of humanity, as predicted by Calvinist colonial theology and evidenced by self-interested profiteering during the Revolutionary War, had been accepted so that the decentralized government of contending powers was created.(146) Something was needed to limit the evil that people in power could do–a system of checks and balances provided that limiting device.

By constitutionally underwriting liberal individualism, the founders saw religion as the only remaining social force that prevented self-interest from being completely divorced from the common good. The conflation of republicanism and liberalism depended upon religion’s restraint of self-interest. Such a restraint was not simply a matter of private virtue, but also public morality.(147) In a governmental structure separating church from state, only a non-established cultural morality could protect individual liberties within a context of the common good. The “publick religion” of the founders not only was more diverse than that of the Puritans, but it was viewed as the key bulwark against excessive individualism.

The America Viewed By De Toqueville

The notion of conducting politics within a spirit of the common good did continue in the post-revolutionary United States. Alexis De Toqueville was fascinated by how the conception of self-interest in the post-colonial, democratic society could sustain a notion of the common good. From his aristocratic background, de Toqueville knew that the democratic experiment seemed to loosen the restrictions on selfishness.

As social conditions become more equal, the number of persons increases
who, although they are neither rich nor powerful enough to exercise any
great influence over their fellows, have nevertheless acquired or retained
sufficient education and fortune to satisfy their own wants. They owe
nothing to any man, they expect nothing from any man
habit of always considering themselves as standing alone, and they are apt
to imagine that their whole destiny is in their own hands.

Thus not only does democracy make every man forget his ancestors, but it
hides his descendants and separates his contemporaries from him
him back forever upon himself alone and threatens in the end to confine him
entirely within the solitude of his own heart.(148)

De Toqueville’s answers are not simply of historical concern. He feared(149) that equality leads to selfish individualism, not the common good.(150) A theory of justice championing freedom and equality also must provide for ways in which equality is directed toward the common good.

De Toqueville identified two ways working in tandem, religion and mediating institutions (to be discussed in the final section of this article), that countered this threat of individualism. Religion softens the individualism that he believed is inherent in democracy.

There is no religion that does not place the object of man’s desires above
and beyond the treasures of earth and that does not naturally raise his
soul to regions far above those of the senses. Nor is there any which does
not impose on man some duties towards his kind and thus draw him at times
from the contemplation of himself. This is found in the most false and
dangerous religions.

Religious nations are therefore naturally strong on the very point on which
democratic nations are weak
preserve their religion as their conditions become more equal.(151)

The need to restrain the individualism that Michelman and Sunstein fear is why de Toqueville called religion the first of U.S. political institutions. Although the Constitutional endorsement of equality encouraged the ability of an individual to pursue solely individual aims, religion teaches humans that such freedom has to be exercised within a context of a common, greater good. One cannot simply pursue narrow self-interest.

This self-interest-attached-to-a-common-good makes for a different notion of self-interest–what de Toqueville called “self-interest rightly understood.” De Toqueville saw religion as ameliorating the harshness of self-interest.

The principle of self-interest rightly understood produces no great acts of
self-sacrifice, but it suggests daily small acts of self-denial. By itself
it cannot suffice to make man virtuous
persons in habits of regularity, temperance, moderation, foresight,
it gradually draws them in that direction by their habits. If the principle
of interest rightly understood were to sway the whole moral world,
extraordinary virtues would doubtless be more rare
depravity would then also be less common. The principle of interest rightly
understood perhaps prevents men from rising far above the level of mankind,
but a great number of other men, who were falling far below it, are caught
and restrained by it. Observe some few individuals, they are lowered by it:
survey mankind, they are raised.(152)

Absent a morality instructing persons in the habits necessary to make such small acts of self-denial, only the gratification of the self in collision with the interests of others remains as a guide.

When … every profession is open to all, when a multitude of persons are
constantly embracing and abandoning it, and when its several members are
strangers, indifferent to and because of their numbers hardly seen by each
other, the social tie is destroyed, and each workman, standing alone,
endeavors simply to gain the most money at the least cost. The will of the
customer is then his only limit.(153)

When productive enterprise is defined only in narrow economic or political terms (self-interest not rightly understood) the responsibility one has to others–that is to the common good–is greatly lessened. The consumer becomes fair game for the most egregious kinds of psychic manipulation in the form of advertising. Politically, self-interest becomes that of aggrandizement and securing of governmental support for private pursuits.(154) Religion provided one way to combat economic greed and political aggrandizement. At the heart of this social structure rested a cultural morality that provided a sense of transcendence.

De Toqueville saw self-interest narrowly construed as the central danger to a free society. This danger would be exacerbated by religious morality becoming self-regarding. That is, religion would become therapeutic and experiential rather than ethical. Rather than pointing to a transcendence beyond the individual, a religion that focuses on the self as created by the self–the task of the first man–could destroy exactly the morality necessary to challenge economic greed and political aggrandizement. What De Toqueville feared is precisely what happened.

The Privatization Of Religion

Religion and mediating institutions may have played an important role in de Toqueville’s time, but as religion became privatized, it lost ground both as a force in the U.S. value system and as an advocate of the common good. A good deal of this loss can be attributed to factors within U.S. religious development that undermined the republican quest for the common good. In other words, secular institutions did not muzzle religious expression. Religious institutions did it to themselves. Religion in the U.S. made itself amenable to democracy, so much so, in fact, that a good deal of contemporary theology such as theological feminism(155) and liberation theology(156) are driven by democratic freedom and equality.(157)

Religion’s amenability to democracy had other effects, however, including one which led to the privatization of religion and its diminished presence in the public square. The enduring U.S. tradition of denominationalism, Sidney Mead argues, led to religion becoming increasingly removed from explaining how economics and politics had to be pursued within a context of the common good.(158) Mead argues that religious freedom, the frontier, and geography provided the setting for the denominational character of the United States, but also led to privatization in large part because religion became a personal choice rather than an obligational determinant of personal identity.(159) The church’s emphasis on pietism and its surrender of the control of public education(160) further made religion a personal, not a public matter, while the religion of the schools has become, as Mead argues, a non-religiously informed set of values led by a faith in democracy.(161)

Mead argues that in the second half of the nineteenth century denominationalism led to an amalgamated “Americanism” that combined pietistic revivalism with faith in the goodness of democracy. Religious experience was largely personalized in the area of conversion experience and such individualism, as de Toqueville warned, simply enhanced an atomistic conception of human life and self-interest.(162)

Segregating religion from public life undercuts the natural dialectic inherent in religious life. If religious life is concerned with how others are treated, then separating it from addressing political and economic issues strangles its very nature (except, of course, for those who choose to be hermits or purely gnostic).(163) By privatizing religion, one thereby promotes an atomistic conception of life by minimizing the ethical and justice imperatives of religious life. What is left becomes therapeutic experiences which are difficult to share with others precisely because they are idiosyncratically personal and private.(164)

The separation of religion from public expression explains a good deal of how religion lost its ability to comment upon political and economic matters. In the culture of democracy, the freedom to choose one’s religious beliefs enhanced local church identification (vis-a-vis a larger institutional tradition) and fostered pluralism. But, such a fragmented religious culture (shorn of its ethical duties) made it difficult to offer any critical commentary on politics and economics other than those that simply endorsed democracy and freedom. This new “Protestant Code”(165) defined no common good outside of democracy, freedom, and the manifest destiny of the United States. Without a notion of the common good that tied self-interest to responsible interaction with others, the civic-forming skills, upon which republicanism could operate, were diminished.

Mead’s argument, reinforced now by the Supreme Court’s institutionalization of privatized religion (in the sense of prohibiting the passing of any law motivated by or having the effect of promoting religion),(166) is that secular rationalists would allow to enter into legislative and judicial affairs only religious-political values that endorse democratic values.(167) Thus, religion has been further marginalized so that it is constitutionally difficult to provide for an ethically-induced transformation of self-interest into a self-interest that is connected with the common good upon which republicanism is historically dependent.

Economic developments and theory laid further ground for the privatization of religion:
But since men, if not given instruction and guidance in such matters as
citizenship and conduct in business by ministers and theologians in their
churches, will nevertheless be instructed and guided by some prevailing
code, the effectual abdication of the Protestant churches meant that the
ideas and ideals of the emerging acquisitive society were generally
accepted without criticism.(168)

It is true that some wealth-accumulators–such as Andrew Carnegie–were devout philanthropists who did identify their responsibility with the greater community. But, there were only so many Carnegies and even those who did embrace the nobility of philanthropy (such as Rockefeller and Ford) often left a wreckage of stakeholders and competitors that undermined the way in which they sought to broaden their self-interest.(169)

One problem with this view of economic activity is that it leads to the narrow focus on instinctual self-gratification that is inevitable if some institution does not transform self-interest. If one interprets free market theory to mean that the public good is best achieved by short-term profit-making, then one loses a sense of personal responsibility for one’s actions and learns the lesson (transferred then to political life) that one need not be concerned with the common good. After all, some invisible hand works it out in the end. If one abdicates economic responsibility, then political responsibility is sure to diminish as well. Such an atomistic self-interest led to the will theory of contracts(170) and the loss of the publicness of the U.S. corporation.(171)

Thus, by privatizing religion, religious institutions undercut themselves in their ability to teach citizens responsibility for their fellow citizens. What was left of religious identification became inherently private. This kind of non-transcendent therapy does have an important role to play and I do not diminish its helpfulness in individual lives. But such a religion has little to offer to the efforts of Sunstein, Michelman, and Etzioni and by having little to offer, religion fails a critical social role. Nevertheless, I again want to emphasize that I do not wish to suggest that a revitalization of the “Protestant Code” version of “publick religion” is the answer for the individualism of our times. The point is not about nostalgia. It is about the necessity for transcendent understanding of human life that ties individual self-interest, ethics, and the common good together.

I also do not wish to be understood as arguing for “big churches” as opposed to the “small churches” often created by denominationalism. In fact, for theological reasons apart from this article (but linked to my advocacy for small mediating institutions in the following section) I think small churches to be advantageous. With regard to religious institutions, the point is not “big” and influential or “small,” but whether the institution points to transcendence to which human beings are accountable and the extent to which they develop moral identity rather than stopping with therapeutic comfort.

Princeton sociologist Robert Wuthnow provides a contemporary example of this difference between therapeutic and moral models of religious belief.(172) Wuthnow argues that “[w]e have domesticated the sacred by stripping it of authoritative wisdom and by looking to it only to make us happy.”(173) Summarizing the results of a nation-wide survey, Wuthnow concludes that:

Religious teachings concerning work have, it appears, come to focus almost
entirely on subjective or psychological issues…. A tentative conclusion
that can be drawn from considering the relationship between faith and work,
therefore, is that religious commitment has come to play a kind of
therapeutic role in relation to economic behavior in postindustrial
society. It may not encourage people to work harder, or to work less hard,
but it makes them feel better about how much they do work. Rather than
providing guidance, religious conviction contributes meaning– that is,
work becomes more interesting, if one stops to think about it, because it
has cosmic significance. And rather than defining the meaning of work in
specific ways, religious beliefs simply make work more satisfying.(174)

This emphasis is hardly negative except for the fact that ethical demands drop out, so that in Wuthnow’s survey honesty becomes the only real normative value.(175) Again, so far so good. But honesty is to be determined, according to the survey respondents, individually so that we often deceive ourselves about whether our acts of dishonesty are really culpable.(176) The important criterion is how we feel about ourselves when bending the rules of honesty.(177) Thus, we “feel” ourselves to be quite ethical, but we think of others (and others think of us) as less ethical.(178) In a culture of “first men,” one should not be surprised that Wuthnow finds that most people at work would not take responsibility for pointing out ethical lapses of co-workers because ethics are really matters of “feeling” and “differences of opinion.”(179) Thus, while religion does have an important role in providing spiritual comfort, its privatization falls short of constructing ethical business communities.

Lessons from the Loss of Transcendence

Given this history, it is not surprising that Michelman, Sunstein, and Etzioni marginalize religion and mediating institutions. This marginalization of religion, however, is not wholly the fault of the “secularists.” Religious institutions privatized themselves. Yet, if politics is to have a notion of the common good, something must transform self-interest. While there are good grounds to fear theocracy, totally privatized notions of transcendence cannot transform self-interest.

What is more important, notions of transcendence, expressed in traditional religions or others, must operate through some kind of specific community whereby particularly individuals are socialized to understand that there is something to which they are accountable and something with which they are interdependent. The learning laboratories for this lesson are mediating institutions. In fact, one of the critical things mediating institutions do is translate a “spiritual” knowledge into an existential reality.


To this point, one might think that an enhanced role for religion is this article’s solution for a politics of the common good and, more specifically for ethical business behavior, to characterize a quest for a common good. A marginalized role for religion in public affairs, however, was not the only reason for a decline of the common good. Mediating institutions also were under an assault from an Enlightenment social contract between the state and the individual. This section suggests that centralized government and capitalism themselves challenge the autonomy of mediating institutions. The task of this section is to argue that mediating institutions are necessary teachers of moral virtues.

The Attack on Mediating Institutions(180)

Sociologist Robert Nisbet has argued that the nation-state attacked the small mediating institutions of family, church, local government and guilds through the waging of, and protection from, war. The nation-state also offered a judicial system as opposed to private dispute resolution, imposed taxes, regulated many aspects of life, and provided for education.(181) Each of these steps emphasizes the relationship of the individual to the state rather than the relationship of the individual to an intermediate structure.(182) According to Nisbet, the “offer” of this social contract is that the individual obtains greater liberty and equality through the state than through mediating institutions.(183) Under this Enlightenment theory of Hobbes and Rousseau, traditional associations inhibit freedom and promote inequality.(184) Thus, the state provides alternatives to private dispute resolution, enforces social order, and intervenes in family life. To be sure, many of these interventions are significant improvements over, for instance, allowing child abuse. I do not want to argue that we should return to a tribal or a patriarchal culture. But, this reliance upon the state does have its downside.

The reliance on the state, simply because of its size, makes difficult the identification of the individual with the common good.(185) It is difficult for anyone, unless unusually powerful, to see what differences their job, their vote, their honesty, or any number of other actions have to do with the “common good” of the country. The same problem holds true in a large corporation as well as in relation to the market itself. Personal responsibility is undermined by this mismatch between the lack of individual control over decisions affecting particular persons and the abstractness of government or markets responsible for solving social problems.(186)

Mediating institutions teach that we cannot simply have things our own way, nor can we “get away” with misfeasance. In voluntary associations, individuals learn to compromise, persuade, and sublimate narrow self-interest for the greater good of the group.(187) In other words, mediating institutions teach that one’s welfare is tied to the welfare of one’s community. Without such training, the impetus will be for individuals to pursue self-interest without regard to others. This theory is consistent with that of the republican revivalists and of the communitarians, but it makes smaller organizations the focus of the expansion of self-interest.(188)

This need for small sizes lies in human nature. Evolutionary psychologists suggest that human brain development is not significantly evolved from what it was in hunter-gatherer times.(189) Since ninety-eight percent of human history was lived in hunter-gatherer times, it should not be surprising that we have a brain adapted to living in relatively small groups.(190) The optimal size of these groups is debatable, as is the optimal size for human groups in which one can understand the consequences of one’s own actions and of the relationship of one’s self-interest to the common good of the group. But, whether the number is thirty(191) or one hundred fifty,(192) the point is that the number is dramatically smaller than megastructures such as the nation-state or the global corporation. Trying to demonstrate self-interest, rightly understood, in a megastructure well may be impossible. Although they do not rely on anthropology or evolutionary psychology, Catholic Social Thought scholars such as Berger and Neuhaus(193) rely upon this moral-forming function of small groups–mediating institutions–to insist that moral identity is formed outside large megastructures. A commitment to the common good is likely only made if individuals first see the connection of a common good–that of their mediating institution–to individual self-interest. Without this formative process, republicans and communitarians have little likelihood of transforming self-interest on a larger scale.

U.S. history again demonstrates the point. For early Americans, as de Toqueville noted, voluntary associations solved social problems and trained individuals to recognize the interdependence of their lives and the lives of others.

The Americans make associations to give entertainments, to found
seminaries, to build inns, to construct churches, to diffuse books, to send
missionaries to the antipodes
prisons, and schools.(194)

Citizens thereby learned the language of compromise and consensus, and were able to see the tangible results of their efforts at compromise and consensus.

Mediating institutions are threatening to the nation-state precisely because they are independent sources of power. To the extent democracy and capitalism can undermine mediating institutions–particularly with values such as liberty and equality–one reduces mediating institutions’ effectiveness in competing for power. Thus, mediating institutions are always engaged in a power struggle with markets and governments.

Mediating Institutions and Self-Interest

Mediating institutions provide a notion of identity. In an age of large institutions where nation-states and corporations remove the altars and temples for “first men” and “company men,” the issue of identity is no longer automatic. Charles Taylor describes this problem as follows:

In the earlier age recognition never arose as a problem. General
recognition was built into the socially derived identity by virtue of the
very fact that it was based on social categories that everyone took for
granted. Yet inwardly derived, personal, original identity doesn’t enjoy
this recognition a priori. It has to win it through exchange, and the
attempt can fail. What has come about with the modern age is not the need
for recognition but the conditions in which the attempt to be recognized
can fail. That is why the need is now acknowledged for the first time. In
premodern times, people didn’t speak of “identity” and “recognition” — not
because people didn’t have (what we call) identities, or because these
didn’t depend on recognition, but rather because these were then too
unproblematic to be thematized as such.(195)

It is not the case, of course, that a mediating institution magically transforms one’s self-interested behavior. Rather, what occurs is that the organization provides a framework in which one has no choice but to negotiate with others in the organization so as to understand one’s identity within the context of the demands and aspirations of the members of the organization. One learns interdependence and moral values.(196)

Previously we saw that Sunstein’s treatment of mediating institutions was ambivalent. Although he saw mediating institutions as potentially oppressive, he also saw them as locations for the cultivation of republican virtues. Jonathan Macey challenges Sunstein’s view that mediating institutions provided locations for the cultivation of republican virtue.(197) Macey argues that mediating institutions make decisions on behalf of their members.(198) Rather than mediating institutions reflecting the desires of constituents, mediating institutions transform members and define their priorities.(199) People adopt priorities that they would not have adopted as nonmember.(200) Using game theory,(201) economics,(202) and social psychology,(203) Macey argues that mediating institutions make people less risk averse.(204) Members become disengaged from the choice of particular policy matters and simply allow the mediating institution to choose for them.(205) Political parties are one example of this.(206) While a person may reject a particular party stand, the “party’s position constitutes a source of information.”(207)

Macey argues that rather than being a place where people develop a rightly understood notion of self-interest, mediating institutions are “devices by which people can express their own self-interest more effectively. They are not institutions that cause people somehow to subjugate their own self-interest to the greater good.”(208) As opposed to encouraging republican virtue, Macey argues, the framers of the Constitution embraced a self-interested understanding of mediating institutions.(209) The coercive effect of mediating institutions is not that of oppression within the group, but the costs incurred by mediating institutions fighting other mediating institutions.(210)

Sunstein’s and Macey’s visions are not necessarily inconsistent if mediating institutions remain relatively small. Sunstein is correct that without the sublimation of personal self-interest to the common good of the mediating institution, one learns no skills to bring to bear on the discussion of the greater common good. Mediating institutions teach a skill based on a moral recognition of interdependence. The role of mediating institutions is not to solve all social ills, but to teach moral empathy and sympathy as well as to develop skills of compromise so that one’s identity is not the “first man’s” but, rather, is communal in nature.

In essence, Sunstein is concerned that mediating institutions might themselves be oppressive to their members. Three aspects of the mediating institution’s approach sketched here counter this fear. First, socializing individuals to have strong characters can be more liberating than oppressive.(211) Second, in small groups, the influence of each person is relatively greater than it would be in large groups. It is possible, if not probable, that individuals are empowered both with a moral identity and with increased power to influence the common good of the mediating institution. Third, as Etzioni noted, no society can be dominated today by one “total group.” The availability of other mediating institutions with which one can be associated is too great for any one group to become too powerful.

It is this last point that worries Macey. His fear is not oppression of members of a community, but the social costs of mediating institutions competing with each other and with a concern that only self-interest is being promoted. Here again, one can offer three responses. First, there is diversity even in the most seemingly alike groups.(212) After all, even the choirs are different. These differences among individual members require compromises of self-interest. Second, if the social costs of competition are so debilitating, why do we have a free market? The answer is that there must be a balance of cooperation and competition in the market just as there must be among mediating institutions, but the competition among such institutions is not itself a reason to discourage them. Third, the time when costs could become debilitating is when competition turns hateful and violent. And it is exactly because of this threat that a shared “publick religion,” perhaps incorporating Etzioni’s New Golden Rule in terms of institutions’ treatment of each other, is required. Assuming a transcendent notion that a New Golden Rule requires mediating institutions (as well as individuals) to respect each other as their own autonomy is respected, one has a balance of transcendence, mediating institutions, and liberalism that can non-oppressively foster a quest for the common good. This literally prevents small communities from going to war and spewing hatred. That morality respects the status of opponents, even in conflict. In short, mediating institutions teach the skills necessary to conceive of and arrive at a common good, the multiplicity of mediating institutions insures that no particular groups gain oppressive power, and the moral teachings of empathy and sympathy prevent the competition from being bloody.

Efforts at creating a common good essentially require mediating institutions to themselves acquire power (but not necessarily political power). They cannot rely upon others to provide them with it. For instance, religious institutions will be guaranteed freedom and autonomy by any government only to the extent that religious believers are faithful to the religious wisdom prior to their faithfulness to political allegiances.(213) In other words, religious freedoms are not the result of government benevolence nor enlightenment, but of countervailing power. As Martin Luther King, Jr. so dramatically demonstrated, it may well require civil disobedience. Civil disobedience is the placing of moral claims ahead of political claims when the two are in conflict. Religious and other mediating institutions (such as families) often have asserted their own rights. But for individuals to have a civic identity beyond that dependent upon nurturing home life, genetic affiliation, and religious homogeneity, other more public mediating institutions are necessary.

Business as Mediating Institution

Sampson warns of the demise of the “company man.”(214) Where once individuals obtained a significant portion of their identity through their company, no one now expects to work for the same company for all their lives.(215) If the company man who is lost is the non-questioning, drab gray-suited, “cog” in the corporate wheel, no great tears need to be shed. But, if the “company man” no longer finds that his or her self-interest is connected to a corporate community, the stage is set for the “company man” to become the “first man.” And, unlike religious institutions, neighborhoods, and families — mediating institutions where there is a predisposition toward sameness — work provides a meeting place for diverse individuals.(216) Serving as a very public private institution or a very private public institution, corporations have a rich potential to create citizens. That will not likely happen, however, if the lessons learned at work have nothing to do with a corporate common good that simultaneously empowers individuals.

Thus, Paul Brest is right to note that corporations are perhaps the most neglected example of mediating institutions.(217) Constructing businesses to be mediating institutions is a task I have undertaken in several other fora.(218) I do not wish to repeat that argument in full, but the main reasons for constructing businesses as mediating institutions are worth recounting. First, if being in such an institution assists in moral formation and identity, then it simply is a good thing to do regardless of whether it is good business.(219) Second, since so much of a person’s waking hours are in business work, the corporation provides an opportunity to develop moral behavior.(220) Third, some scholars have argued that business demands time from employees that once was available for traditional mediating institutions like the family, neighborhood, and voluntary organizations.(221) One then could argue that an obligation in this “takeover” is the obligation to be a mediating institution.(222) Fourth, a mediating institution which is primarily concerned with the development of its internal members might have a corporate analogue that is efficacious if internal “stakeholders” have priority in corporate social responsibility.(223) Fifth, many businesses(224) and business strategies(225) depend upon a notion of a business that is acting very much like a mediating institution.

The heart of this understanding of business as mediating institution is that individuals remain human beings to whom social relationships are important. Emphasizing that importance in a forum where individuals initially may be strangers therefore provides an excellent opportunity for “first men” to dialogue and form new communities where they realize that individual well-being is tied to communal well-being. Allowing relatively small groups within corporations to form a community would foster the atmosphere in which individuals must face consequences of their actions and thereby form moral identity in a context transcending the categories of identity (race, class, gender) with which they may have otherwise been content. It makes “company persons” who understand their moral identity beyond that constructed by “first men.”

Mediating Institutions: A Summary

The moral rationale for an approach grounded in mediating institutions is that it is through these intimate societies that one learns social responsibility. Watching the results of one’s actions for those people one can actually see and touch creates the sensitivity to be responsible for one’s actions. Learning the lessons of social responsibility — of ethics and morality — teaches us how we are to limit our own acquisitiveness and how to be responsible for the pains and problems of those around us. In Judeo-Christian terms, we learn what it means to love our neighbor.


A viable republican and communitarian theory requires some reactivation of a public political and economic role for the kind of inquiry that can develop a language of the common good. It first requires a recovery of a moral commitment to empathy, sympathy, solidarity, and dignity. It is important to stress that this is a moral, not a political or governmental task. It is a task of persuasion anchored in the traditions of the ethics of world religions and the most recent scientific research.

Second, it is culturally appropriate for religious institutions to be educational carriers for the common good and to stress its inherently public nature. The United States has historically depended upon them. But, it is not the only possible alternative.

Third, mediating institutions ought to be autonomous centers of power. As such, they cultivate republican virtues by identifying self with others. To keep such an enlarged self from turning inward, however, requires a normative common good open to practicing a new Golden Rule with other mediating institutions. Reintegrating religious and mediating institutions gives republican and communitarian theory the substance and pedagogy by which the “first man” is no longer isolated. These institutions can foster a greater sense of identity of the human sell With the transformation of self-interest, republicanism can ground a moral commitment to the common good. Upon that transformation, the altars and temples re-emerge. Upon that transformation, the “first man” breaks out of self-imposed isolation.

U.S. history supports such a republican and communitarian theory. While civic republicanism and communitarianism commendably attempt to transform self-interest into a quest for the common good, they need to draw upon the historical importance of religious belief and the significance of mediating institutions. In particular, they need to address how business institutions can become mediating institutions in order to foster communities that teach that self-interest has a social and even transcendent aspect. These steps will go a long way to transform today’s “company man,” left behind by the company and by politics, from remaining an isolated “first man.”

(1) ALBERT CAMUS, THE FIRST MAN 193 (David Hapgood trans. 1995). The word “anxiety” was written by the author at the top of the manuscript as an alternative for the word “dread,” as contained in this quotation.. Id. at viii (Editor’s Note).

(2) ANTHONY SAMPSON, COMPANY MAN: THE RISE AND FALL OF CORPORATE LIFE 226 (1995) (quoting Charles M. Albrecht, who led a consulting team of “employee transition” experts in the downsizing at IBM).

(3) Id.

(4) This journal has published several articles on the common good and its relation to the individual. Many of these deal with issues of property rights, such as Caryn L. Beck-Dudley & James E. Macdonald, Lucas v. South Carolina Costal Council: Takings, and the Search for the Common Good, 33 AM. BUS. L. J. 153 (1995)

(5) See generally Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988)

(6) It is important to note that neither Camus nor Sampson leaves us with a fully alienated person. They each seek ways to provide a sense of hope. The purpose of their comments here is to diagnose the problem they confronted, not to debate the solutions they offered. The discussion of those solutions, with which I have some strong affinities, is beyond the scope of this particular article.


(8) ETZIONI, supra note 7, at xviii.


(10) Id.

(11) Id.

(12) See, e.g., F. A. HAYEK, THE FATAL CONCEIT (1988).

(13) DURKHEIM, supra note 9, at 192.

(14) The Judeo-Christian name for the Almighty.

(15) The powerful God in Hinduism.

(16) The Moslem name for God.

(17) Many so-called “primitive faiths” would identify God or Gods as Nature broadly speaking. See, e.g., PETER PARIS, THE SPIRITUALITY OF AFRICAN PEOPLES: A SEARCH FOR A COMMON DISCOURSE (1995): VINE DELORIA, GOD IS RED: A NATIVE VIEW OF RELIGION (1994)

In his history of the Dynasties of the Gods, Hesiod writes as a
constructive theologian, and gives an intelligible explanation of the
development of the world, in which ethical forces take their place beside
the telluric and atmospheric forces of nature. That is to say, he is not
content to show the relationships of the various divinities to whom men
prayed and sacrificed, and to use the traditional data of contemporary
religion. He chooses rather to weld the facts of religion in the widest
sense — the facts of cult, myth, and psychological experience — into a
history, wrought by reason and imagination together, of the origins of the
world and the beginnings of human life. And so he describes every active
force as divine power an attitude appropriate to that early period in the
history of thought.

WERNER JAEGER, 1 PAIDEIA: THE IDEALS OF GREEK CULTURE 65 (Gilbert Highet trans., 1965). My thanks to Clyde Stoltenberg for pointing out this connection.

(18) DURKHEIM, supra note 9, at 192.

(19) Id.

(20) Id. Obviously, this is not to argue that moral duties are the only way to create kinship.


(22) Id. at 2.

(23) See id. at 2.


(25) BERGER & NEUHAUS, supra note 21, at 3.

(26) See, e.g., ROBERT BORK, THE TEMPTING OF AMERICA (1990) for a more complete description of judicial restraint and originalism. Bork, of course, was a central intellectual figure in advocating for this philosophy and his nomination to the Supreme Court demonstrated the stakes of his methodology.

(27) See WOOD, supra note 5 and the other figures cited therein for this proposition.

(28) Michelman, supra note 5, at 1507.

(29) Michelman seems to value his dialogical structure as a judicial, not a popular enterprise. He gives a minor role to people who un-self consciously always participate in achieving consensus through debate as part of everyday life, but a big role to the courts. By doing so, he may energize the courts, but the general population’s development of citizenship is not likely to occur. See Kathryn Abrams, Law’s Republicanism, 97 YALE L.J. 1591, 1596 (1988).

(30) Michelman, supra note 5, at 1504-07.

(31) Id. at 1513.

(32) Id. at 1502, 1526-27.

(33) See generally Sunstein, supra note 5.

(34) Id. at 1564.

(35) Id. at 1564-65.

(36) Id. at 1541.

(37) Id. at 1544.

(38) Id. at 1549.

(39) Id. at 1550-51.

(40) Id. at 1552.

(41) Id. at 1552.

(42) Id. at 1552, 1576-77.

(43) Id. at 1554.

(44) Id. at 1554.

(45) Id. at 1554.

(46) Id. at 1555.

(47) Id. at 1567.

(43) Id. at 1550-58.

(49) Id. at 1567.

(50) Id. at 1567.

(51) Id. at 1567.

(52) Id. at 1567-69.

(53) See generally Jonathan R. Macey, The Missing Element in the Republican Revival, 97 YALE L.J. 1673 (1988).

(54) Id. at 1679.

(55) Id. at 1683.

(56) Richard A. Epstein, Modern Republicanism – Or the Flight From Substance, 97 YALE L.J. 1633 (1988).

(57) See, e.g., Timothy L. Fort, The Spirituality of Solidarity and Total Quality Management, 13 J. BUS. & PROF. ETHICS 3 (1995).

(58) Cf. JOHN HOWARD YODER, THE POLITICS OF JESUS 243-44 (1972). Yoder makes the argument about the status of opponents in relation to war. Both Yoder and the republicans, however, recognize the inherent status of others as ends themselves.

(59) See CHARLES TAYLOR, MULTICULTURALISM AND “THE POLITICS OF RECOGNITION” 59 (1992). Taylor argues that liberalism’s rights protection can be ensured within a Quebec-styled government whose “common good” has a very specific cultural content.

(60) See Sunstein, supra note 59, at 1555.

(61) See Jurgen Habermas, A Review of Gadamer’s “Truth and Method” in THE HERMENEUTIC TRADITION: FROM AST TO RICOUER 254 (Ormiston & Schrift eds., 1990) Habermas describes depth-hermeneutic as follows:

Depth-hermeneutic understanding requires therefore systematic
pre-understanding that extends onto language in general, whereas
hermeneutical understanding always proceeds from a pre-understanding that
is shaped by tradition and which forms and changes itself within linguistic

(62) Id. at 239.

(63) One may argue whether philosophy is better positioned to make such arguments. I think it is not (at least in any exclusive sense), but regardless of the settlement of that issue, the kinds of questions raised by these fields of inquiry are critical to the efficacy of republicanism.

(64) See Kathleen M. Sullivan, God as a Lobby: The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, 61 U. CHI. L. REV. 1655, 1669 (1994) (book review).

(65) See generally William Marshall, The Other Side of Religion, 44 HASTINGS L. J. 843 (1993).



(68) Cf. ALASDAIR MACINTYRE, AFTER VIRTUE (1981). If one relies on narratives, one must take into account the realities that people bring religious understanding into their notions of what the good is

(69) See generally Derrick Bell & Preeta Bansal, The Republican Revival and Racial Politics, 97 YALE L.J. 1609 (1988).

(70) Id. at 1612.

(71) Id. at 1617.

(72) This is, of course, the position Lincoln took against Stephen Douglas. As Lincoln biographer Carl Sandburg wrote:

A powerful fragment of America breathed in Douglas’ saying at Quincy: “Let
each State mind its own business and let its neighbors alone! … If we
stand by that principle, then Mr. Lincoln will find that this republic can
exist forever divided into free and slave States … Stand by that great
principle and we can go on as we have done, increasing in wealth, in
population, in power, and in all the elements of greatness, until we shall
be the admiration and terror of the world … until we make this continent
one ocean-bound people.”

CARL SANDBURG, ABRAHAM LINCOLN: THE PRAIRIE YEARS AND THE WAR YEARS 129 (1970). Sandburg quotes Lincoln’s ultimate response to Douglas:

“That is the issue that will continue in this country when these poor
tongues of Judge Douglas and myself shall be. silent. It is the eternal
struggle between these two principles…. The one is the common right of
humanity and the other is the divine right of kings. It is the same …
spirit that says, `You work and toil and earn bread, and I’ll eat it.’ No
matter what shape it comes, whether from the mouth of a king who seeks to
bestride the people of his own nation and live by the fruit of their labor,
or from one race of men as an apology for enslaving another race, it is the
same tyrannical principle.”


(73) Marshall, supra note 65. See also infra notes 158-59 and accompanying discussion. I leave to the side for now the issue of the equivalency of oppression and marginalization. Suffice it to say that marginalization creates a path for oppression.

(74) Habermas, supra note 61.

(75) MICHAEL J. PERRY, LOVE & POWER: THE ROLE OF RELIGION & MORALITY IN AMERICAN POLITICS 8-16 (1991). Perry argues against a “neutral” version of political dialogue because in so arguing, those who do have religious beliefs are excluded from participating and are thereby marginalized.

(76) ALASDAIR MACINTYRE, THREE RIVAL VERSIONS OF MORAL ENQUIRY: ENCYCLOPEDIA, GENEALOGY, & TRADITION (1990). The theme of a continued discussion with one’s ancestors is a dominating feature of this, and most other of, MacIntyre’s work.

(77) Id. at 127-48. Cf. Russell Hittinger, Natural Law & Virtue: Theories at Cross Purposes, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS (Robert P. George ed., 1994). Hittinger critiques MacIntyre’s association of natural law and virtue.

(78) See also RICHARD SENNETT, THE CORROSION OF CHARACTER: THE PERSONAL CONSEQUENCES OF WORK IN THE NEW CAPITALISM (1998). Sennett makes a similar critique, but focuses more tightly on the superficial nature of work tools such as “teams.”


(80) Sunstein, supra note 5, at 1572.

(81) Id. at 1574, 1578.

(82) Jonathan R. Macey, Packaged Preferences & the Institutional Transformation of Interests, 61 U. CHI. L. REV. 1443, 1475 (1994).

(83) Abrams, supra note 29, at 1604-05.

(84) Id. at 1604, 1615.

(85) Paul Brest, Further Beyond the Republican Revival: Toward Radical Republicanism, 97 YALE L. J. 1623, 1624, 1628-29 (1988).

(86) Id. at 1624, citing Pitkin, Justice: On relating Private and Public, 9 POL. THEORY 327, 347 (1981), quoting J. TUSSMAN, OBLIGATION AND THE BODY POLITIC 78-81 (1960) (footnotes omitted).

(87) Id. at 1629.

(88) Id. at 1626, 1631. The subject of corporation-as-mediating institution is one I focus on in a variety of business ethics writing. Such material is beyond the scope of this paper, but is ultimately relevant to both republican thought and church-state jurisprudence. See, e.g., Timothy L. Fort, Business as Mediating Institution, 6 BUS. ETHICS Q. 149 (1996).

(89) Bell & Bansal, supra note 69, at 1610-12.

(90) ETZIONI, supra note 7, at 96.

(91) ETZIONI, supra, note 7, at xviii.

(92) Id. at 75.

(93) Id. at 16.

(94) Michael Keeley, Community, The Joyful Sound, 6 BUS. ETHICS Q. 549 (1996).

(95) For a more complete review of Etzioni and his book, see Timothy L. Fort, On Golden Rules, Balancing Acts, and Finding the Right Size, 8 BUS. ETHICS Q. 346 (1998). The following discussion draws significantly from that review.

(96) ETZIONI, supra note 7, at 127.

(97) Id.


(99) Amy Gutmann, Communitarian Critics of Liberalism, 14 PHIL. & PUB. AFF. 319 (1985).

(100) ETZIONI, supra note 7, at 128.

(101) Id.

(102) Id. at xix-xx.

(103) Id. at xviii.

(104) Id. at 127.

(105) Id. at 200-08.



(108) Id. at 38-39.

(109) See, e.g., JAMES Q. WILSON, THE MORAL SENSE 41-49 (1993)

(110) See BERGER & NEUHAUS, supra note 21.

(111) ETZIONI, supra note 7, at 176.

(112) Etzioni is fond of the term “moral voice” and devotes a chapter to it by name. See id. at 123-64.

(113) Id. at xviii.


(115) 2 Samuel 12:1-7.

(116) DURKHEIM, supra note 9.

(117) FYODOR DOSTOEVKSY, THE BROTHER KARAMAZOV (Richard Preveart & Larissa Volokhonsky trans., 1990).

(118) Id. at 69.

(119) Id. at 246-64.

(120) Id. at 249.

(121) Id. at 249-62.

(122) Marshall, supra note 65, at 851.

(123) DOSTOEVKSY, supra note 117, at 262.

(124) Id. at 260.

(125) Several authors have detailed the history of religion in the United States. See RICHARD JOHN NEUHAUS, THE NAKED PUBLIC SQUARE: RELIGION AND DEMOCRACY IN AMERICA (1984)

(126) See TIMOTHY L. FORT, LAW AND RELIGION (1985) for an expanded exposition of this topic.



(129) Id. at 101.

(130) Id. at 103.

(131) Id. at 104.

(132) Id. at 93.

(333) Id. at 104.

(134) See FORT, supra note 126, for an extended discussion of the theological underpinnings of colonial and post-Constitutional law in Connecticut, including that of Swift. See also HAROLD BERMAN, THE INTERACTION OF LAW & RELIGION (1974) for an extended discussion of this topic in the United States generally.


(136) REICHLEY, supra note 128, at 105.

(137) See generally RICHARD MCBRIEN, CAESAR’S COIN: RELIGION AND POLITICS IN AMERICA (1987). McBrien describes public religion as a religion which transcends denominational boundaries to assume a public character. Id. at 12.

(138) Id. at 12.

(139) See generally PRESSER (1991), supra note 5.

(140) Id. at 18-19.

(141) Id. at 37-46.

(142) Id. at 37-46.

(143) Id. at 37-46.


(145) FARBER & SHERRY, supra note 5, at 16.

(146) WOOD, supra note 5, at 114-15.

(147) Human nature left to pursue its own aims without a sense of community good, breeds an amorality that ultimately undermines the basis for democracy and freedom. Freedom and self-interest may legitimately allow for individual self-determination, but only if that self-determination is directed toward the common good.

F.A. Hayek made a similar argument out of a free-market perspective. Hayek argues that morality occurs because of the interaction among individuals who wish to trade. In order to trade, they must arrange some sense of moral order so that the trading partner can be trusted. Those trading patterns lead to a community of trading that, it is hoped, expands continually. It creates orders of “spontaneous creation.” But, continuation of spontaneous ordering requires a notion of community solidarity so that the individual does not unfairly profit from the vulnerability of others within the community. This loyalty, along with virtues of promise-keeping, truth-telling, production of quality products and services, efficiency, savings, and equality of opportunity are what make possible the pursuit of self-interest and the continued development of society. HAYEK, supra note 16, at 38-70. Hayek clearly sides in favor of integrity virtues over communal virtues, but it is hard to see how they do not ultimately go together. Although he is agnostic, Hayek endorses the actions of religions because they represent the wisdom of inherited learning that is wiser than individual rationality. Id. at 135-40.

(148) ALEXIS DE TOQUEVILLE, 2 DEMOCRACY IN AMERICA 105-06 (1945). Of course, one could argue that aristocracy simply hides the dominations that compel individuals to serve the common good. Aristocracy can prevent the asking of questions that reveal the implicit dominations of those who are not in the ruling class.

(149) And it remains relevant today as indicated by his last phrase of the above quote, which sounds as if it could come from Camus’ First Man.

(150) DE TOQUEVILLE, supra note 148, at 50-51.

(151) DE TOQUEVILLE, supra note 148, at 23.

(152) Id. at 131.

(153) Id. at 50-51.

(154) See generally Deborah A. Ballam, The Evolution of Government-Business Relationship in the United States: Colonial Times to Present, 31 AM. BUS. L. J. 553 (1994). Ballam argues that government never fully allowed a laissez-faire business climate but would often support particular business activity.





(159) In the contemporary U.S., that is a difficult distinction to grasp. We tend to think that we choose our religious belief, but religious belief can simply be a part of one’s unchosen identity. Native Americans, for instance, argue for the preservation of sacred grounds not because they choose to believe that such grounds are sacred and/or meaningful, but because they are sacred prior to any choice having been made. See, e.g., Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).

(160) Mead argues that another factor in this forfeiture is the ceding of the religious to the scientific, particularly in the battle over evolution. The survival of the fittest mentality fostered by capitalism became the target not only of Karl Marx, but of the Social Gospel movement in America.

Keeping in mind that central to the social-gospel movement was reaction
against the individualism of pietistic revivalism, the identification of
Protestant Christianity with economic laissez faire and the exploitation of
natural and human resources characteristic of industrial capitalism, we can
understand why the movement tended to swing to the opposite extremes of
substituting social concern for individual Christian experience of
identifying the gospel with current schemes for constructing society
judging the work of the church on the basis of its effectiveness in
furthering social reform

MEAD, supra note 158, at 177, 182-83.

(161) MEAD, supra note 158, at 103-33. Mead is quite explicit in recognizing the church’s surrender of education:

The state in its public-education system is and always has been teaching
religion. It does so because the well-being of the nation and the state
demands this foundation of shared beliefs. In other words, the public
schools in the United States took over one of the basic responsibilities
that traditionally was always assumed by an established church. In this
sense the public school system of the United States is its established
church. But the situation in America is such that none of the many
religious sects can admit without jeopardizing its (sic) existence that the
religion taught in the schools (or taught by any other sect for that
matter) is “true” in the sense that it can legitimately claim supreme
allegiance. This serves to accentuate the dichotomy between the religion of
the nation inculcated by the state through the public schools, and the
religion of the denominations taught in the free churches.

In this context one can understand why it is that the religion of many
Americans is democracy–why their real faith is the “democratic faith”
–the religion of the public schools. Such understanding enables one to see
religious freedom and separation of church and state in a new light.

MEAD, supra note 158, at 68.

(162) MEAD, supra note 158, at 136-37.


(164) See, e.g., Thomas Nagel, Moral Conflict and Political Legitimacy, 16 PHIL. & PUB. AFF. 215, 232 (1987).


(166) See, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971). Lemon, of course, has been under attack for years, but has not yet been explicitly overruled.

(167) Rather than being religiously-grounded, values must be neutrally grounded. Kathleen Sullivan demonstrates the contemporary strictness of this reinterpretation (that remains very persuasive in political/legal circles) of U.S. history when she writes: “The correct baseline, then is not unfettered religious liberty, but rather religious liberty as it is consistent with the establishment of secular public moral order.” Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195, 198 (1992).

(168) MEAD, supra note 158, at 138.

(169) This of course also led to the development of labor unions which organized to provide protection for workers from employers. Thus, while I think philanthropy gets a bad rap from moralists as only being “conscience money,” neither can philanthropy be the entirety of a culture’s limitation of self-interest.

(170) There is a consensus from legal historians such as J. Willard Hurst that the religiously grounded “just price” of the colonial era was replaced in the nineteenth century by a will theory of contracts in which the price was simply a matter of the negotiated wills of the contract participants. J. WILLARD HURST, LAW AND THE CONDITIONS OF FREEDOM IN THE NINETEENTH CENTURY UNITED STATES (1968).

(171) The U.S. experience with corporate law confirms de Toqueville’s fear. As legal historian and corporate theorist Stephen Presser has shown, the public nature of corporations, in terms of being chartered by legislative act and for the public good (such as municipalities, bridges, and ferries), was undermined by the Jacksonian demand to open the corporate privilege to the common person. Conjoined with this development was the faith in laissez-faire capitalism so that corporate life contained no incentive to pursue the common good. Stephen B. Presser, Thwarting the Killing of the Corporation: Limited Liability, Democracy and Economics, 87 NW. U. L. REV. 148 (1991).


(173) Id. at 6.

(174) Id. at 77.

(175) Id. at 84.

(176) Id. at 91.

(177) Id. at 91.

(178) Id. at 92.

(179) Id. at 92.

(180) See Fort, supra note 88, for a fuller discussion of this topic. This subsection is abstracted from that article.


(183) Id. at 134-35.

(184) Id. at 116-35.

(185) Id. at 179-81.

(186) See, e.g., JOHN HAUGHEY, THE HOLY USE OF MONEY 3-6 (1986). Haughey writes that the spiritual weakness of Solomnic Israel lay in its reliance upon the King and his bureaucracy to respond to the needs of others.

(187) See generally Pitkin, supra note 86.

(188) Brest, supra note 85.

(189) WRIGHT, supra note 107, at 38.

(190) Id. at 38-39.

(191) See JAYNES, supra note 109, at 129.

(192) Gary Stix describes Dunbar’s findings as follows:

In humans, Dunbar found the size of the neocortex predicts optimal
populations of] groups of about 150 people. This number happens to conform
to the approximate number of the clan within hunter-gatherer societies
company unit within the military
business that can be managed without an elaborate bureaucracy. The figure
of 150, Dunbar writes, represents the maximum number of individuals with
whom “we can have a genuinely social relationship….”

Gary Stix, Different Strokes, SCI. AM., Nov. 1996, at 36 (reviewing DUNBAR, supra note 106).

(193) BERGER & NEUHAUS, supra note 21.

(194) DE TOQUEVILLE, supra note 148, at 114.


(196) See Fort, supra note 88, at 151-53, for a fuller description of this in terms of psychological theory.

(197) See generally Macey, supra note 82.

(198) Macey, supra note 82, at 1443.

(199) Id. at 1445.

(200) Id. at 1445.

(201) Id. at 1447.

(202) Id. at 1448.

(203) Id. at 1451.

(204) Id. at 1452.

(205) Id. at 1457.

(206) Id. at 1461-63.

(207) Id. at 1463.

(208) Id. at 1463.

(209) Id. at 1471.

(210) Id. at 1472.


(212) This is true with the exception of some cults.

(213) Madison argued that religiously based duties are “precedent both in order of time and degree of obligation, to the claims of Civil Society.” James Madison, Memorial and Remonstrance Against Religious Assessments, cited in Michael W. McConnell, Religious Participation in Public Programs, 59 U. CHI. L. REV. 115, 173 (1992).

(214) SAMPSON, supra note 2.

(215) Id.


(217) Brest, supra note 85.

(218) Fort, supra note 88

(219) Fort, supra note 88, at 155.

(220) Id. at 156.


(222) Fort, supra note 88, at 156.

(223) See generally supra note 218.



TIMOTHY L. FORT, Assistant Professor, University of Michigan. Copyright 1999 Timothy L. Fort. I would like to thank Professors Stephen B. Presser and Frances Zollers for their helpful comments regarding earlier versions of this article. I would also like to thank two anonymous ABLJ reviewers whose comments significantly improved the quality of this paper. Finally, my thanks to Clyde Stoltenberg who provided excellent guidance in finalizing the manuscript.3